Order Xv Rule 4 Of The Fundamental Rights (Enforcement Procedure) Rules, 2009 As A Provision For Justice And Not For Administrative Connivance

Hameed Ajibola

It has been observed that some of our Nigerian Courts (especially the Federal High Court of Nigeria, Headquarters, Abuja) have been abusing the powers given to them under Order XV Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009- herein after referred to as the FREP Rules, which was made pursuant to section 46(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution. Some of these Courts, especially the Federal High Court of Nigeria, Headquarters, Abuja, have been misinterpreting this provision of the FREP Rules, to the abuse and defeat of the interest of justice by rejecting and denying applicants to fundamental rights suits from accessing the courts for his failure to pay prejudgment fee or default fee or any such fee contrary to the fee(s) provided under the Appendix to the FREP Rules. This paper is to sensitize our courts especially the Federal High Court of Nigeria, on the need to always adhere to the provisions of the FREP Rules, and not abusively rely on the Rules of Court to commercialize access to court for monetary benefits or gains or income or profit to the denial of an Applicant to enforcement of fundamental rights proceedings before the court, hence, this topic.

First and foremost, I wish to deal with the issue of some of these courts (for instance, the Federal High Court of Nigeria, the supposed protector and last hope of the common man) being misguided and relying on the provision of Order XV Rule 4 of the FREPR which provides thus ‘4. Where in the course of any Human Rights proceedings, any situation arises for which there is or appears to be no adequate provision in these Rules, the Civil Procedure Rules of the Court for the time being in force shall apply. (Underlining is mine for emphasis). From this provision which some of our courts respectfully (especially the Federal High Court of Nigeria, Headquarters, Abuja) have always relied upon, it is clear that whatever monetary amount as compensation an applicant under fundamental rights suit seeks as reliefs, is none of the business of the court or its registry or its official or its Deputy Chief Registrar to compel him to pay any prejudgment or post judgment sum or percentage of any sum awarded by the court since the FREPR did not envisage such a situation. Such misinterpretation is therefore nothing but a selfishly misconceived interpretation! Also, as can be clearly observed from the Order XV Rule 4 (supra), which some of these courts (especially the Federal High Court, Headquarters, Abuja, have been relying upon, in my humble submission, ‘it is only in the course of any human rights proceedings…’ and not ‘at the pre-trial or filing state or prior to filing state or at the assessment of filing fees stage’ that the Rules of court would apply as wrongly understood and or interpreted by some of these our courts (especially the Federal High Court of Nigeria, Headquarters, Abuja)!

The fees to be paid by an Applicant under the FREP Rules have been provided in the Appendix to the Rules which provides thus

‘APPENDIX

  1. SCHEDULE OF FEES

 FILLING FEE IN FUNDAMENTAL RIGHTS APPLICATIONS

The Filing Fees for application for enforcement of Fundamental Rights

shall be Five Hundred Naira (N500.00);

For a motion, it shall be One Hundred Naira (N100.00);

For an Affidavit, it shall be Fifty Naira (N50.00);

For a written address, it shall be One Hundred Naira (N100.00); and

For any other process, it shall be One Hundred Naira (N100.00).’.

It would be observed that from the provisions of the Appendix above, the fees to be paid in enforcement of fundamental rights have been simplified and affordable to indigents and common-man and not made high to be paid and unaffordable and discouraging! Therefore, my query is ‘where then did the Deputy Chief Registrar of the Federal High Court of Nigeria, Headquarters, Abuja, and or the Federal High Court itself fabricate the need for every Applicant to enforce his fundamental rights to pay any pre-judgment fee from or to pay any default fee normally paid under the Rules of the Court from?!’ It therefore means nothing than an administrative connivance by the Deputy Chief Registrar of the Court and the Court itself to deny such indigent and common man from enforcing his fundamental rights in the Federal High Court of Nigeria, Headquarters, Abuja and or any other Division of the Court!

In the case of Abia State University, Uturu v Anyaibe (1996) 3 NWLR (pt. 439) 646 at 661, per Katsina-Alu, JCA (as he then was) held that the Fundamental Rights (Enforcement Procedure) Rules made pursuant to the Constitution, have the force of law as the Constitution itself; and overrides the provisions of any other enactment to the contrary. In which case, such a provision has equal force of law as the Constitution itself.  Furthermore, I humbly submit that fundamental rights suits are sui generis (i.e. of their own Rules and Procedures). The following cases are noteworthy too: in the case of Enukeme v Mazi (2015)17 NWLR (1488)411 C.A. at page 434 paras. A-C, Mbaba, J.C.A. (delivering the leading judgment), held thus ‘I must start by stating the obvious, that Fundamental Rights Enforcement Procedure is sui generis, being specially and specifically designed with its own unique rules by the Constitution, to address issues of fundamental rights of persons protected under the Constitution. Of course, consideration of issues founded on breaches of fundamental rights in this case must be handled within the exclusive confines of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which actually came to correct some perceived wrongs and hardship which the 1979 Rules (fashioned on the 1979 Constitution) caused to applicants seeking enforcement of their fundamental rights, especially in the areas of adherence to undue technicalities and delays in determining applications’ (Underlining is mine for emphasis). The case of Loveday v Comptroller, Fed. Prisons Aba (2013) 18 NWLR (pt. 1386) 379 C.A. is also relevant and relied upon on this issue. Furthermore, under the Constitution, Chapter IV has laid down all the fundamental rights that every person as a Nigerian citizen is entitled to. Also, under the Constitution, section 46 and Order II Rule I of the FREPR provide that ‘any person who alleges that any of the provisions of the Constitution in Chapter IV has been or is likely to be contravened in any State in relation to him may apply to a High Court for redress’. (Underlining is mine for emphasis). Why then would such an aggrieved Applicant be denied access to justice by the same Court of justice (for instance, the Federal High Court of Nigeria, Headquarters, Abuja) for the Applicant to thereby such denial and or rejection suffer injustice in the hands of the court of justice?! This is totally regrettable and unacceptable!

Furthermore, the FREP Rules provides for the overriding objectives of the Rules which the Court shall give effect to in its Preamble thus 1. ‘The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given to it by these Rules or any other law and whenever it applies or interprets any rule3. The overriding objectives of these Rules are as follows: (a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them. (b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include; (i.) The African Charter on Human and Peoples’ Rights and other Instruments (including protocols) in the African regional human rights system, (ii) The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system, (c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient. (d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.’

From the above Preamble 3(b) of the FREP Rules, the objective of the FREP Rules is clear as follows ‘(b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include;’. As underlined in this provision, the purpose of fundamental rights proceedings for the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, which the Court shall uphold every Applicant’s right to access the Court to ventilate his grievance.

Also, from the clear wordings of the provisions of the Preamble 3(c) of the FREP Rules, it is clear the further objectives of the FREP Rules, which provides thus ‘(c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient’. It is clear from this underlined provisions of the FREP Rules that the FREP Rules is for the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms and the Court may make consequential orders as may be just and expedient.

Furthermore, the Preamble 3(d) of the FREP Rules has mandated a Court of law to give free access to Court for every Applicant thus ‘(d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented’. This underlined provision is clear that the Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.

Therefore, where a court of law (such as the Federal High Court of Nigeria, Abuja) that is mandated by section 46 (1) of the Constitution to protect and give free access to court to an aggrieved applicant, and such court or its registry or its Deputy Chief Registrar denies or turns back the applicant on ground of such pre-judgement fee or percentage charge or default fee under the Rules of Courts meant for the regular cases in the court, then, such court and or its registry or official is in violation of the extant provisions of the Constitution and such act and or request will be unconstitutional, null and void and of no effect. See: Section 1 of the Constitution. More so, such courts would be encouraging self-help which the law seeks to prevent by giving free access to court and justice, else, there will be consequential ‘jungle justice’ and anarchy and chaos will pervade the entire nation! God forbid!

Finally, therefore, I urge the Chief Judge of the various High Courts (especially the Federal High Court of Nigeria, Abuja Judicial Division) perpetrating this unconstitutional act to review this observation and to warn whoever among their official or persons that is aiding and or abetting this broad-day rape of our Constitution to the denial of access to court and justice to an aggrieved Applicant under fundamental rights enforcement suits. The Honourable, the Chief Justice of Nigeria is further urged to take up the protection of the fundamental rights of Nigeria which is not negotiable and to investigate the practice and procedures of all High Courts in relation to the enforcement of fundamental rights all across Nigeria.

Injustice to one, is an injustice to all!

 

Email: hameed_ajibola@yahoo.com

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